Citation Nr: 0921380
Decision Date: 06/08/09 Archive Date: 06/16/09
DOCKET NO. 08-04 301 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of service connection for posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Teena M. Petro, Agent
ATTORNEY FOR THE BOARD
L. Barstow, Associate Counsel
INTRODUCTION
The Veteran had active military service from October 1963 to
October 1967, and from September 1973 to September 1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a November 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana.
The Board notes that at the Veteran's VA examinations in
November 2006 and December 2007, he was not diagnosed with
PTSD, but he was diagnosed with other mental illnesses
including mood disorder, not otherwise specified (NOS);
anxiety disorder NOS; alcohol dependence; and polysubstance
abuse. The Board finds that the record raises the question
of whether new and material evidence has been received to
reopen a claim of service connection for other psychiatric
disability, and therefore refers those questions to the RO.
FINDINGS OF FACT
1. By an April 1987 decision, the Board denied service
connection for an acquired psychiatric disorder, including
PTSD.
2. The evidence related to the Veteran's PTSD claim that was
received since the April 1987 Board decision relates to an
unestablished fact necessary to substantiate the claim and
raises a reasonable possibility of substantiating the claim.
3. The Veteran does not have PTSD.
CONCLUSIONS OF LAW
1. New and material evidence has been received to reopen the
Veteran's claim of service connection for PTSD. 38 U.S.C.A.
§§ 1131, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303, 3.304,
20.1100 (2008).
2. The Veteran does not have PTSD that is the result of
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§§ 3.303, 3.304(f), 4.125(a) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)) has changed
the standard for processing veterans' claims. The VCAA has
left intact the requirement that new and material evidence be
received in order to reopen a previously and finally denied
claim under 38 U.S.C.A. § 5108. It is specifically noted
that nothing in the Act shall be construed to require the
Secretary to reopen a claim that has been disallowed except
when new and material evidence is presented or secured, as
described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f).
See also Paralyzed Veterans of America, et al. v. Secretary
of Veterans Affairs, 345 F.3d 1334, 1343 (Fed. Cir. 2003)
(PVA) (without the introduction of new and material evidence,
VA not required to provide a medical examination or opinion).
The Board has determined that new and material evidence has
been received to reopen the claim for service connection for
PTSD. In view of that determination, there is no need to
engage in any analysis as to whether the requirements of the
VCAA have been satisfied with respect to the question of
reopening. See, e.g., Kent v. Nicholson, 20 Vet. App. 1
(2006). The Veteran was apprised of what was required to
substantiate the underlying claim in March 2006.
Generally, service connection requires (1) medical evidence
of a current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury. See Caluza v. Brown, 7 Vet. App.
498 (1995).
The Veteran was denied service connection for an acquired
psychiatric disorder, including PTSD, by the Board in a
decision dated in April 1987. The claim was denied because
the evidence did not show that the Veteran had PTSD. The
Veteran applied to have his claim of service connection for
PTSD reopened in correspondence received in November 2005.
A decision of the Board is a final decision, effective as of
the date stamped on the face of the decision. 38 C.F.R. §
20.1100 (2008). If a claim of entitlement to service
connection has been previously denied and that decision
became final, the claim can be reopened and reconsidered only
if new and material evidence is presented with respect to
that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1
Vet. App. 140, 145 (1991).
The Board must consider the question of whether new and
material evidence has been received because it goes to the
Board's jurisdiction to reach the underlying claim and
adjudicate the claim de novo. See Jackson v. Principi, 265
F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380
(Fed. Cir. 1996). If the Board finds that no such evidence
has been offered, that is where the analysis must end, and
what the RO may have determined in that regard is irrelevant.
Barnett, supra. Further analysis, beyond consideration of
whether the evidence received is new and material, is neither
required nor permitted. Id. at 1384; see also Butler v.
Brown, 9 Vet. App. 167, 171 (1996).
"New" evidence is evidence not previously submitted to
agency decision makers. "Material" evidence is evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a). In
determining whether evidence is new and material, the
"credibility of the evidence is to be presumed." Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
The relevant evidence of record at the time of the prior
denial of service connection consisted of the Veteran's
service treatment records (STRs) through the ends of both
periods of active duty ending in October 1967 and September
1975, VA treatment records dated from January 1983 to October
1984, VA psychiatric examinations in March 1985, and July and
August 1986, a VA social worker examination in July 1986, and
the Veteran's testimony at a hearing in June 1986. His STRs
showed that in September 1966, he was opined to not have any
mental illness, but displayed a gross combat reaction. A
record dated in February 1983 shows that the Veteran was
diagnosed with adjustment disorder with mixed emotional
features; and rule out PTSD. A record dated in April 1983
indicates that the possibility that the Veteran had PTSD
should be explored. The March 1985 VA examination indicated
that the Veteran did not have any evidence of mental illness
at that time. The July 1986 VA examination revealed that no
mental disorder was elicited at that time, and the social
worker examination revealed that the Veteran had PTSD-like
symptoms. The August 1986 VA examination showed that the
Veteran met several of the criteria necessary for
consideration of both a generalized anxiety and possible
PTSD. The examiner further opined that if the Veteran was
not found to have generalized anxiety, there was sufficient
evidence in his background, person, and place to consider him
as having PTSD.
The relevant evidence received since the 1987 denial of
service connection consists of private treatment records
dated from August 2002 to February 2006, a private
psychological evaluation dated in November 2005, VA
psychiatric examinations in November 2006 and December 2007,
the Veteran's statements, and lay statements from friends and
his wife. The Veteran's private medical records show that he
was diagnosed with PTSD.
Because the newly received evidence relates to an
unestablished fact necessary to reopen the previously denied
claim, namely, evidence of a diagnosis of PTSD, the Board
finds that it is both new and material.
The Board thus finds that new and material evidence adequate
to reopen the previously denied claim of service connection
for PTSD has been received, and the application to reopen is
therefore granted.
As noted above, the Veteran's STRs are of record and show
that in September 1966 the Veteran was hospitalized for
malaria and was extremely tense and nervous. A
neuropsychiatric consultation and evaluation was obtained.
The psychiatrist opined that there was no evidence of
significant mental or emotional disturbance at the present,
and that the Veteran was suffering from a gross combat stress
reaction for which he was then slowly recovering and that he
was then fit for duty. The psychiatrist also opined that the
Veteran should not be returned to a combat status at that
time. He was diagnosed with combat exhaustion. His
personnel records show that he was stationed in Vietnam in
1966. His discharge examination dated in September 1967 did
not show any mental disorders. The Veteran's entrance
examination in September 1973 for his second period of
service did not show any mental disorders. His STRs for his
second period of service did not show combat exhaustion or
PTSD. The Veteran's decorations from his first period of
service consist of the National Defense Service Medal, the
Vietnam Service Medal with two Stars, the Republic of Vietnam
Cross of Gallantry with Palm, the Republic of Vietnam
Campaign Medal with Device; and the Armed Forces
Expeditionary Medal. The Board notes that involvement in
combat has been conceded by the RO.
Private medical records beginning in October 2005 reveal that
the Veteran was diagnosed with PTSD. The October 2005 record
does not indicate that the diagnosis of PTSD was made in
accordance with the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders (DSM-
IV). Nor does it contain any rationale for the diagnosis.
Following October 2005, the Veteran's private medical records
show that he was treated for PTSD, depression, and anxiety.
A lay statement from a friend dated in October 2005 showed
that the Veteran had flashbacks.
A letter dated in November 2005 from the Veteran's private
physician, J.O., M.D. shows that the Veteran was referred to
a psychiatrist because he had an inability to sleep,
nightmares, flashbacks from Vietnam, and anger control
issues. Dr. J.O. opined that he believed that the Veteran
might be suffering from PTSD related to his Vietnam
experiences.
The Veteran had a private psychiatric evaluation in November
2005. He had trouble sleeping unless he took medication. He
reported significant problems with anger. The Veteran
reported that his problems really developed after his tour of
duty in Vietnam, and that he had had significant troubles
since then. He reported troubles with alcoholism and drug
addiction. He was significantly distressed with frequent
flashbacks, significant hypervigilance, and avoidance
symptoms. He reported nightmares, not specifically of things
that occurred to him during service, but with themes of being
stranded, oppressed, and unable to control some impending
danger. He reported combat stressors. The Veteran was
diagnosed with PTSD and polysubstance abuse in full
remission. The evaluation does not indicate that the
Veteran's claims file or service records were reviewed.
Statements from the Veteran's wife dated in March and August
2006 reveals that the Veteran had trouble sleeping,
nightmares, anger problems, and always felt threatened.
The Veteran was afforded a VA psychiatric examination in
November 2006. The examiner provided an exhaustive review of
the relevant medical history, service personnel history, and
the Veteran's own reports. The examiner opined that the
Veteran did report a stressor that met the DSM-IV PTSD
stressor criteria, but that he did not report psychiatric
symptoms that met DSM-IV PTSD symptoms criteria. The
examiner noted that the Veteran did not report persistently
re-experiencing a traumatic event. In the past, it should be
noted that the Veteran had reported that to his psychiatrist.
However, that day, he did not report any numbing of general
responsiveness or persistent avoidance of stimuli. In
addition, while he did report a problem with anger
management, no other symptoms of increased arousal were noted
or reported. Most importantly, he did not report significant
psychological dysfunction that could be attributed to any
PTSD-like symptoms. The Veteran was diagnosed with mood
disorder not otherwise specified (NOS); alcohol dependence
(in remission); and polysubstance abuse (in remission). The
examiner opined that overall, the Veteran was not seen as
suffering from PTSD as he did not report psychosocial
symptoms that met DSM-IV symptom criteria. The examiner
noted that the Veteran did appear to suffer from other
disorders that appeared to contribute to mild psychosocial
functioning impairment at that time.
The Veteran was afforded a second VA psychiatric examination
in December 2007 with a board of two psychiatrists. His
claims file and available medical records were reviewed. As
with the November 2006 examiner, the psychiatrists provided
an exhaustive review of the relevant medical history, service
history, and the Veteran's own reports. They opined that the
Veteran's exposure to stress from his tour of duty in Vietnam
was considered moderate. They further opined that otherwise,
the Veteran did not meet the DSM-IV criteria for PTSD. He
did not manifest persistent recollection and intrusive
thoughts of traumatic events and the persistence of avoidance
and arousal issues. The examiners noted that the Veteran's
military and post-military life was marred by excessive abuse
of alcohol and multiple illicit drugs, with behavioral and
illegal consequences. The examiners explained that it was
not uncommon for patients with chronic severe alcohol and
polysubstance dependence to develop psychiatric symptoms and
medical disorders. Psychiatrically, anxiety, depression,
paranoia, hallucinations, and sometimes delirium were
manifested. However, there was no apparent evidence that
that had complicated his mental state of mind or functioning.
It was noted that the Veteran functioned quite well in his
employment, family role, and his other pursuits. The
examiners opined that it would have been difficult for the
Veteran to function as he did if his mental or emotional
condition was complicated by PTSD symptoms. The Veteran was
diagnosed with anxiety disorder NOS, mild; anxiety disorder
due to general medical condition; alcohol dependence, in
remission; polysubstance abuse, in remission; and nicotine
dependence, in remission.
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Entitlement
to service connection for PTSD requires medical evidence
diagnosing PTSD in accordance with the DSM-IV, a link,
established by medical evidence, between current symptoms and
an in-service stressor, and credible supporting evidence that
the claimed in-service stressor occurred. 38 C.F.R.
§§ 3.304(f); 4.125(a). Where the claimed stressor is not
related to combat, the Veteran's lay testimony, by itself,
will not be enough to establish the occurrence of the alleged
stressor. Instead, the record must contain evidence that
corroborates the Veteran's account as to the occurrence of
the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R.
§ 3.304(d), (f) (2008); Cohen v. Brown, 10 Vet. App. 128
(1997). Evidence denoting participation in combat includes
award of decorations such as the Combat Action Ribbon, Combat
Infantryman Badge (CIB), Purple Heart Medal, and decorations
such as the Bronze Star Medal that have been awarded with a
Combat "V" device.
However, where VA determines that the Veteran did not engage
in combat with the enemy, or that the Veteran did engage in
combat with the enemy but the claimed stressor is not related
to such combat, the Veteran's lay testimony, by itself, will
not be enough to establish the occurrence of the alleged
stressor. Instead, the record must contain evidence that
corroborates the Veteran's account as to the occurrence of
the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R.
§ 3.304(d), (f); Cohen v. Brown, 10 Vet. App. 128 (1997).
Here, it has been conceded that the Veteran engaged in combat
with the enemy. There is also some evidence that suggests
that the Veteran has PTSD. The Veteran was diagnosed with
combat exhaustion in service, but his discharge examination
in 1967 did not show any mental disorders, and his STRs from
his second period of service did not show combat exhaustion
or PTSD. The Veteran's private medical records, including a
November 2005 psychiatric evaluation, show that he was
diagnosed with PTSD. However, two VA examinations, including
one examination with a board of two psychiatrists, indicate
that the Veteran does not have PTSD. In this case, the Board
finds that the evidence that indicates that the Veteran does
not have PTSD outweighs the evidence that the Veteran does
have PTSD. There are three detailed evaluations considering
whether the Veteran has PTSD: one private and two VA. (The
Board acknowledges that the Veteran's private physician
diagnosed him with PTSD in October 2005 prior to the November
2005 evaluation; however, that record does not provide any
rationale, nor does it indicate that such diagnosis was made
in accordance with the DSM-IV.)
Of the detailed and probative evaluations; here, there are
two evaluations that indicate that the Veteran does not have
PTSD, compared to one evaluation that indicates that the
Veteran does have PTSD. The December 2007 VA examination was
done by a board of two psychiatrists. Following exhaustive
examinations, three VA medical professionals have opined that
the Veteran does not have PTSD, compared to one private
medical professional who diagnosed the Veteran with PTSD.
(As noted above, records from Dr. J.O. beginning in October
2005 that show that the Veteran was diagnosed with PTSD do
not indicate that such diagnosis was done in accordance with
the DSM-IV following an exhaustive examination like those
done by the VA examiners and the private psychiatrist.) The
November 2006 and December 2007 VA examination reports are
the most probative evidence concerning which mental disorders
the Veteran actually experiences. This is so because these
records enumerate each of the criteria for the diagnosis and
explain why the Veteran does not satisfy all of them. The VA
examiners were able to review the claims file and interview
the Veteran. On the contrary, the private examiner did not
take such an approach. In fact, the November 2005 examiner
even noted that the Veteran's nightmares were often not of
the things that occurred to him during war, which strongly
suggests that the Veteran was not persistently re-
experiencing the traumatic event, just as the VA examiners
noted. Consequently, the Board finds that the VA examiners'
more detailed and internally consistent reports are of
greater evidentiary weight. In other words, the Board finds
that the competent medical evidence that shows that the
Veteran does not suffer from PTSD outweighs the evidence that
shows that he does. Thus, an essential requirement for
service connection is not met, namely a finding of a current
diagnosis of the claimed disability. Absent a showing that
the Veteran in fact has PTSD, service connection for PTSD is
not warranted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir.
1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The Board acknowledges the Veteran's belief that he has PTSD
related to his military service. However, there is no
evidence of record showing that the Veteran has the
specialized medical education, training, and experience
necessary to render competent medical opinion as to diagnosis
of a disability. Espiritu v. Derwinski, 2 Vet. App. 492
(1992); 38 C.F.R. § 3.159(a) (1) (2008). Consequently, the
Veteran's own assertions as to diagnosis and etiology of a
disability have no probative value.
The Board has considered the benefit-of-the-doubt doctrine,
but finds that the record does not provide even an
approximate balance of negative and positive evidence on the
merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of
the above analysis, and after consideration of all the
evidence, the Board finds that the preponderance of the
evidence is against the claim. The Veteran does not have
PTSD that is traceable to disease or injury incurred in or
aggravated during active military service.
ORDER
The claim of entitlement to service connection for PTSD is
reopened; to this limited extent, the appeal of this issue is
granted.
Entitlement to service connection for PTSD is denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs